21 Apr Fair Work Commission upholds dismissal of childcare worker who refused flu vaccination

The dismissal of a childcare worker who objected to having a flu shot without having sufficient evidence of a medical exemption, has been upheld by the Fair Work Commission in the decision of Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021).

While there was issue taken with the employer’s decision to dismiss on the basis of a lack of capacity (i.e. that vaccination constituted an inherent requirement of the job) and not for misconduct. Ultimately, it was concluded that as the direction to be vaccinated was lawful and reasonable, a valid reason for termination existed “based on the [worker’s] conduct in failing to comply with that direction [302].“

The dismissal was considered fair taking into account the “paucity” of medical evidence and the lengthy process attempted to obtain it. It was also acknowledged that the employer made its requirements clear and the employee failed to comply “by choice [428]”.

An alternate argument made by the employee that the forcing of the vaccination was assault and battery was unsuccessful.

Wider implications of the decision?

The Fair Work Commission has expressed caution in applying the decision to other circumstances noting the decision “is relative to the influenza vaccine in a highly particular industry [13]“.

The Commission has said “an attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons [contained in the decision] would be audacious, if not improvident [394].“